Canada: The Basics: Service Of Proceedings Within The Jurisdiction - Top 10 Questions Answered

Once proceedings have been issued, the claim form must be served correctly within a specified period to ensure that the claim is properly brought to the defendant's attention. The Civil Procedure Rules (CPR) Parts 6 and 7 set out the relevant provisions for service of proceedings. Here we look at the top 10 questions that arise when serving proceedings within the jurisdiction.

1. Who serves the claim form?

Generally, in commercial claims, the claimant's solicitors serve the claim form, not the court. Where a claim has been issued through CE filing in the Rolls Building then the claimant (or its solicitor) must serve it unless the court orders otherwise. Claims in the TCC (along with all other documents) must be served by the claimant (or its solicitor).

2. When and how should the claim form be served within the jurisdiction?

A claim form to be served within the jurisdiction is valid for a period of four calendar months from issue. CPR 6.3 sets out the various methods of service available. CPR 7.5 sets out the steps (according to the particular method of service chosen) that a claimant must complete before 12.00 midnight on the calendar day four months after the date of issue of the claim form to effect service.

This process is known as 'despatching' the claim form and the steps required are set out in the table below.

Method of service Step required
First class post, document exchange or other service which provides for delivery on the next business day Posting, leaving with, delivering to or collection by the relevant service provider
Delivery of the document to or leaving it at the relevant place Delivering to or leaving the document at the relevant place
Personal service under CPR 6.5 Completing the relevant step required by CPR 6.5(3)
Fax Completing the transmission of the fax
Other electronic method Sending the e-mail or other electronic transmission

It is the despatching of the claim form, not the receipt of it by the defendant or the deemed date of service (see 5 below), that must take place within the four month validity period to ensure that service is effected in accordance with the rules.

When serving by fax or other electronic means, the necessary consents - implied or express - need to have been obtained (PD 6A.4).

3. What if the defendant does not provide an address for service?

CPR 6.9 provides for default addresses for service where an address for service has not been provided by the defendant and personal service is not required. Depending upon the entity being sued, the default address is an address connected to a defendant's residence (if an individual), place of business, principal office or where a company carries on its activities.

Service on an individual (even if being sued in the name of a business or a partnership) at such an address will be good unless the claimant believes that the defendant no longer resides or carries on business at the default address. In such instances, the claimant must then take reasonable steps to ascertain the defendant's current residence or place of business. The defendant can then be served at that current address.

If no current address can be ascertained, and there is no alternative place or method for service available, the claimant can serve on the default address and service will be deemed to be good.

4. Can service be made on the defendant's solicitors?

Yes. Pursuant to CPR 6.7, a claim form must be served on a defendant's solicitor where:

  • The defendant provides in writing the address of its solicitor within the jurisdiction as an address at which it may be served with the claim form; or
  • A solicitor acting for the defendant notifies the claimant in writing that the solicitor is instructed to accept service of the particular claim form on the defendant's behalf at that address.

Without such notification, service upon the defendant's solicitor will not be valid.

5. When are the proceedings deemed served?

Under CPR 6.14, the claim form is deemed served - so treated as having arrived - on the second business day after despatch, regardless of whether it has in fact arrived or not. The deemed date of service sets the timetable for the next steps in the proceedings - such as acknowledgement of service - and has no impact on when service is actually effected as per 2 above.

6. Does service always have to be under CPR 6?

No. Parties can contractually agree the method and place of service for claims arising under the contract. The Companies Act 2006 (CA) also provides for methods of service on a company. Care should be taken to ensure service is effected in accordance with the contractual provisions or under the CA as the service provisions under the CPR will not necessarily apply or be implied.

7. Can an application to extend the time for service be made?

Yes. The claimant can apply to extend time for service under CPR 7.6 within the four month period of validity and, in limited circumstances, after that period has expired. The court does not grant extensions lightly and this is particularly so for retrospective applications once the four month period has expired. In such a case, the claimant must have taken all reasonable steps to have effected service (but failed) and have made the application under CPR 7.6 promptly. As such applications are made without notice to the potential defendant any order granted is vulnerable to appeal following service of the claim form which must be accompanied by the order extending time.

The parties can also agree (in writing) to extend time but the claimant will bear any risk that the court might subsequently find that agreement to be ineffective.

8. Can the court order alternative service or dispense with service?

Yes. The court can order service by an alternative method, or at an alternative place, or that steps already taken to bring the claim form to the defendant's attention by an alternative method or at an alternative place amount to good service (CPR 6.15). However, to succeed on such an application, there has to be good reason why service according to the usual methods cannot be undertaken. Unexplained delay in attempting to effect service and insufficient steps to ascertain a current address will not suffice. In exceptional circumstances the court can dispense with service altogether (CPR 6.16). Again, such orders are susceptible to being set aside on application by the defendant.

9. What if service of the claim form is late?

If the claim form is not despatched within the four month period (or any extension(s) of time obtained) then:

  • If the limitation period for the underlying claim itself has not expired
    • the defendant may agree not to take any point on late service;
    • the claimant can seek an order for alternative service or for service to be dispensed with, as per 8 above; or
    • the claimant may discontinue the claim and issue fresh proceedings. However, a further issue fee will be incurred (£10,000 for claims over £200,000). The defendant's costs of the discontinued claim will almost certainly also have to be paid;
  • If the substantive limitation period for the claim has expired, then unless the claimant seeks and obtains an order for alternative service or for service to be dispensed with, the claim will be struck out and the underlying claim will be statute barred and so lost.

10. When must the particulars of claim be served?

The particulars of claim can be contained in or served with the claim form or can be served within 14 days after service of the claim form (CPR 7.4). The particulars must, however, be served no later than the latest time for serving the claim form - so four calendar months from issue for claims served within the jurisdiction - unless there has been an agreement with the defendant, or order of the court, extending the time for service. If served as a separate document, even with the claim form, the particulars of claim may well have a different deemed date of service to the claim form so don't get caught out serving it outside the four month period or any extended time.

Attitude of the court

The court has very little sympathy where mistakes are made with service, especially where service is left to the end of the service period and particularly when issue of the claim form itself was left to the end of the underlying limitation period.

The following easy steps can help ensure the claim form is properly served

Claimants should:

  • Effect service promptly and well within the four month period of validity, especially if limitation is an issue and if the defendant is being uncooperative;
  • Obtain written confirmation that the defendant's solicitor is instructed to accept service and will do so by email;
  • Consider the quality, nature and duration of an entity's use of premises in determining its place of business, or where it carries on its activities;
  • Err on the side of caution when taking reasonable steps to determine a defendant's current residence or place of business if the default address does not appear to be the current address; and
  • Keep evidence of steps taken to 'despatch' in case a subsequent dispute arises as to whether it was done in time.

And for defendants:

  • Consider challenging an order extending time if the claimant had taken no steps to effect service within the four month period;
  • A defendant can serve a notice on the claimant requiring service of a claim form under CPR 7.7 if it is aware one has been issued. A claimant must then either discontinue the proceedings or serve the claim form within the period specified in the notice (which must be at least 14 days), failing which the defendant can apply for the claim to be dismissed; and
  • You are not obliged to point out defects in service before the period for service, or any underlying limitation period expires, but care needs to be taken to ensure the courts do not find the claimant was misled into making a mistake when serving, as opposed to falling into a trap of its own making.

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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